• rob
• Turner Law Offices Blog
• on May, 26, 2013
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Jodi Arias is facing the ultimate decision:  life or death.  The death penalty is reserved for the most heinous first degree murderers.  Death penalty cases are bifurcated into two separate and distinct phases: 1) the guilt phase and 2) the penalty phase.  The first phase, the guilt phase, determines the guilt or innocence of the criminal defendant, and allows the jury to determine whether the criminal defendant is guilty of first degree murder or felony murder.  Only if the jury finds the criminal defendant guilty of first degree murder or felony murder does the case move to the second phase, the penalty phase.  During the penalty phase, the jury is asked to determine whether the criminal defendant is sentenced to death, life in prison without the possibility of parole, or life in prison.  The prosecutor will present evidence of aggravating factors through victim impact witnesses, then, criminal defense counsel will present evidence of mitigating factors that can affect the sentencing.  Mitigating evidence is often expert in nature, and tends to have testimony from forensic psychiatrists and forensic psychologists. 

Aggravating factors in a Tennessee Death Penalty case include the following:

1. The murder was especially heinous, atrocious, cruel or depraved (or involved torture)
2. The capital offense was committed during the commission of, attempt of, or escape from a specified felony (such as robbery, kidnapping, rape, sodomy, arson, oral copulation, train wrecking, carjacking, criminal gang activity, drug dealing, or aircraft piracy)
3. The defendant committed ‘mass murder’ which is defined as the murder of three or more persons whether in a single episode or at different times within a forty-eight month period
4. The defendant knowingly created a grave risk of death for one or more persons in addition to the victim of the offense
5. The murder was committed by means of a bomb, destructive device, explosive, or similar device
6. The murder was committed for pecuniary gain or pursuant to an agreement that the defendant would receive something of value
7. The defendant caused or directed another to commit murder, or the defendant procured the commission of the offense by payment, promise of payment, or anything of pecuniary value
8. The murder was committed to avoid or prevent arrest, to effect an escape, or to conceal the commission of a crime
9. The defendant has been convicted of, or committed, a prior murder, a felony involving violence, or other serious felony
10. The capital offense was committed by a person who is incarcerated, has escaped, is on probation, is in jail, or is under a sentence of imprisonment
11. The murder was committed against a person less than 12 years of age and then defendant was 18 years of age or older
12. The victim was especially vulnerable due to a significant handicap or disability, whether mental or physical and the defendant knew or reasonably should have known of such a handicap or disability
13. The victim was a government employee, including peace officers, police officers, federal agents, firefighters, judges, jurors, defense attorneys, and prosecutors, in the course of his or her duties
14. The victim was a correctional officer
15. The murder was committed against a national, state, or local popularly elected official, due to or because of the official’s lawful duties or status, and the defendant knew that the victim was such an official
16. Defendant was involved in killings in the course of or attempt of aggravated child neglect and aggravated child abuse
17. The defendant knowingly mutilated the body of the victim after death
18. The murder was committed in the course of an act of terrorism
19. The victim or the murder was 70 years of age or older
20. Murder committed against any emergency medical or rescue worker, emergency medical technician, paramedic or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known

Mitigating factors in a Tennessee Death Penalty include the following:

1. Impaired capacity. The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
2. Duress.  The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
3. Minor participation.  The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
4. Equally culpable defendants.  Another defendant or defendants, equally culpable in the crime, will not be punished by death.
5. No prior criminal record. The defendant did not have a significant prior history of other criminal conduct.
6. Disturbance.  The defendant committed the offense under severe mental or emotional disturbance.
7. Victim’s consent. The victim consented to the criminal conduct that resulted in the victim’s death.
8. Other factors.  Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

Additional witnesses for the defense will include character witnesses and family members who will attempt to persuade the jury to sentence the criminal defendant to life and avoid the death penalty.  After criminal defense counsel introduces mental health issues, the prosecutor has a right to introduce their expert testimony to rebut or challenge the evidence introduced by criminal defense attorney as to the legitimacy or exaggeration of the criminal defense experts.  The jury, after hearing testimony of aggravating and mitigating factors, will weigh these factors and will have to return a unanimous verdict of death. 

Jodi Arias gave an interview after the Arizona jury convicted her of first degree murder, and said that she wanted “ultimate freedom.”  According to Jodi Arias, “death is the ultimate freedom.”  The ultimate question for the jury is not life or death, but do we give Jodi Arias what she says she wanted, or is Jodi Arias just manipulating the jury the exact same way she manipulated everyone else throughout the long, drawn out ordeal.  Is Jodi Arias’ statement merely a last attempt to use reverse psychology on the jury to have them give her life and as a last ditch effort to avoid the death penalty?